Ram Niwas v. The State of Bihar

Order

Mr. Satish Kumar, Advocate.

6. 07-10-2013 Heard learned counsel for the petitioner, learned A.P.P. for the State and learned counsel appearing for the opposite party no. 2. The present application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the ‘Code’) seeks quashing of order dated 13.03.2013 passed by the 4th Additional Sessions Judge, Samastipur in Cr. Revision No. 697 of 2012/105 of 2012, by which the same has been dismissed and the order dated 13.09.2012 in C.R. Case No. 1446 of 2012 passed by the Chief Judicial Magistrate, Samastipur taking cognizance, has been upheld. The opposite party no. 2 had filed Complaint Case C.R. No. 1446 of 2012 before the Chief Judicial Magistrate, Samastipur alleging that the petitioner along with another 2

Patna High Court Cr.Misc. No.17639 of 2013 (6) dt.07-10-2013 person, being police officers, had arrested him despite having an order prohibiting such arrest and while sending him to lock up had snatched Rs. 2,000/- from his pocket. Upon cognizance being taken by the Chief Judicial Magistrate, Samastipur on

13.09.2012 under Sections 323/342/341/379/504/34 of the Indian Penal Code, the petitioner moved in revision which was dismissed by the order impugned. Learned counsel for the petitioner submits that from a plain reading of the complaint, it is apparent that there is no allegation with regard to the petitioner so far as arresting the complainant is concerned. The only allegation is that the petitioner, being the officer-in-charge of the local police station, had directed the other co-accused to snatch Rs. 2,000/- from the pocket of the complainant and lock him up. Learned counsel submits that first and foremost, admittedly, the allegations are made with regard to him acting in the discharge of his official duty and cognizance taken without the previous sanction of the State Government, as required under Section 197 of the Code, the same cannot be sustained. It is further submitted that even for effecting the arrest it is admitted that there was a criminal case pending in which the complainant could be arrested and the arrest having been made in the manner alleged, that is, without any extraneous consideration or without there being any demand by the accused, cannot be faulted in the eyes of law. It is further submitted that later on the same day the complainant was 3 Patna High Court Cr.Misc. No.17639 of 2013 (6) dt.07-10-2013 released when his father produced a document which showed that there was interim stay in favour of the petitioner with regard to his arrest. Learned counsel submits that the arrest was made on 04.08.2012 and the document which indicated the interim order is also dated 04.08.2012 and thus it corroborates the stand of the petitioner that only after his arrest and being brought to the police station, the father of the complainant had got hold of the said document which he later on produced in the police station resulting in the release of the petitioner. Learned counsel submits that there is due entry in the station diary with regard to the petitioner being arrested at 9:30 P.M. at the police station and later on at 11:30 P.M. he was shown to have been released in view of the document produced showing such interim order in his favour, by his father. Learned counsel has relied to Annexure-3, which is copy of the relevant extract of station diary entry bearing nos. 86 and 88. Learned counsel submits that though the Court has power to take cognizance based on a prima facie case being made out, but in the present case without there being any sanction of the State Government as well as the fact that the allegations are highly improbable and without any reason assigned, the criminal proceeding would be an abuse of the process of the Court. Learned counsel submits that the question of sanction was relevant since in the entire complaint case there is allegation that the police party had come and arrest was made and later on the incident which occurred was also in 4 Patna High Court Cr.Misc. No.17639 of 2013 (6) dt.07-10-2013 the police station. Learned counsel submits that the Court having failed to discharge its duty under the Code, the order taking cognizance cannot be sustained in the eyes of law. It is submitted that the Courts have also held that under Section 482 of the Code, the Court can take into account whether the allegations are absurd and improbable that no prudent person can reach such conclusion and the criminal proceeding is maliciously instituted with an ulterior motive for seeking vengeance and if it is found so, the proceedings are fit to be quashed. For such proposition, learned counsel places reliance on the decision of a co-ordinate Bench of this Court in the case of Chandra Shekhar Jha vs. State of Bihar reported in 2013 (2) PLJR 571. Learned A.P.P. for the State opposes the application but submits that from the allegations made in the complaint, the Court was required to seek prior sanction before taking cognizance and also that there is no explanation or reason disclosed for the police to arrest the complainant, if the interim protection granted to him was produced at the time when such arrest was effected. Learned counsel appearing for the opposite party no. 2 also opposes the application and submits that as far as sanction under Section 197 of the Code is concerned, the same is only with regard to acts done in the discharge of official duty whereas in the present case, the police having violated and 5 Patna High Court Cr.Misc. No.17639 of 2013 (6) dt.07-10-2013 disobeyed the order of the Court cannot be said to have acted in the discharge of official duties and therefore, no prior sanction was required. Further he has stated that sanction can be taken at any point and thus even if the same has not been taken prior to cognizance, it shall not vitiate the order. With regard to the defence of there being station diary entry regarding the sequence of events, it is submitted that the same at this stage cannot be taken as evidence as it is required to be tested and proved which can only happen during trial. For such proposition, learned counsel relies upon a decision of the Hon’ble Supreme Court in the case of State of M.P. v. Awadh Kishore Gupta reported in (2004) 1 SCC 691. Learned counsel has also raised a preliminary objection inasmuch as it is submitted that once the party has moved before the Sessions Court in revision in a case and after losing that, moves the High Court under Section 482 of the Code, the same is not maintainable as it amounts to a second revision which is specifically barred under the Code. Learned counsel, for such proposition, has relied upon a decision of a co-ordinate Bench of this Court in the case of Devendra Prasad v. State of Bihar reported in 2005 (4) PLJR 543. Learned counsel has also referred to the relevant portion in the Bihar Police Manual (Volume-2) in which a format has been given with regard to maintaining station diary and submits that the document brought on record, Anneuxure-3, does not disclose that the format prescribed has been followed which, according to 6 Patna High Court Cr.Misc. No.17639 of 2013 (6) dt.07-10-2013 him, makes such document unreliable for being relied upon at the present stage. Considering the rival contentions and going through the materials on record, this Court is in agreement with the submissions of learned counsel for the petitioner. From the entire reading of the complaint, it is obvious that the allegation against the petitioner is one directly relating to his discharge of duty in his official capacity and the allegation that the same has been misused cannot be a ground to deny application of Section 197 of the Code which restricts the Court to take cognizance without there being sanction. Further, from the plain reading of the complaint, it is also obvious that the allegation made that the order showing interim protection from arrest being produced before the police and brushed aside without there being any allegation of any sought as to why the same was done, raises serious doubts and also does not seem to be convincing. The release of the petitioner within a few hours as admitted in the complaint and also shown from the station diary entry, cannot be lost sight of and also lends credence to the theory that the document showing interim protection from arrest was not produced at the initial stage but later on when the same was produced, the complainant was released from custody. The so called document which is a form seeking information being dated

04.08.2012, i.e., the date on which the arrest was effected, also supports the case of the petitioner that a document which was 7 Patna High Court Cr.Misc. No.17639 of 2013 (6) dt.07-10-2013 ready and made available on 04.08.2012 to learned counsel for the complainant, would unlikely be available with him on

04.08.2012 itself and thus the fact mentioned in the station diary entry that later on the father of the complainant had produced such order leading to his release is more acceptable and believable. As far as the allegation in the complaint that only because of the hue and cry raised by the co-villagers at the police station the complainant was released is also not believable since in the complaint itself, at the very initial stage it is stated that the complainant was sitting at his house along with other co-villagers who had objected but in spite of that the police had arrested the complainant and taken him away to the police station. Thus, from the village if the petitioner could be arrested despite there being co-villagers who were objecting, it cannot be believed that at the police station just because of the hue and cry of the co-villagers, he would have been released. The explanation that the father of the complainant produced an order showing that the Court had given interim protection from arrest which led to him being released from police custody is therefore, believable in the present facts and circumstances of the case. Further, the allegations that Rs. 2,000/- was snatched from the pocket of the complainant is clearly a cosmetic addition only to give a grave picture to the allegation in the complaint. The fact that, though the incident took place on 04.08.2012 and the complaint was 8 Patna High Court Cr.Misc. No.17639 of 2013 (6) dt.07-10-2013 lodged after two days i.e., on 06.08.2012, also cannot be lost sight of. As far as objection of the opposite party no. 2 with regard to appreciation of evidence relating to Annexure-3, the same is unsustainable for the simple reason that it is an extract of the police station diary entry which is apparent that after serial no. 86, serial no. 88 is given i.e., serial no. 87 is missing. Further, as per the format given in the Police Manual (Volume-2) it is obvious that only at the very beginning the date has to be mentioned and later on entries are numbered and detailed description has to be given, which in the present case has been followed. It can also not be ignored that the date on which the extract has been signed is 01.10.2012, i.e., almost after two months of the incident and thus, it cannot be the photo copy or the replica of the station diary entry. Even under the Indian Evidence Act, 1872 certified copy of entries made in official records can be taken judicial note of. Moreover, the objection raised is with regard to the format and not the contents. Even this objection is erroneous, as has been discussed earlier, since the document is not a replica or copy of the original but only a separate copy of the relevant portions of the station diary entry issued under the seal and signature of the competent authority which has also not been disputed or challenged. The decision relied upon by learned counsel for the opposite party no. 2 in the case of Awadh Kishore Gupta (Supra) is distinguishable on facts since in the said case before 9 Patna High Court Cr.Misc. No.17639 of 2013 (6) dt.07-10-2013 the Hon’ble Supreme Court certain documents like income tax returns were relied upon to hold that the property shown in the returns were fully explained to have been acquired from the known sources of income of the accused and his relatives and nothing had been found to have been acquired disproportionately to the income of the accused and also that the properties acquired by his relatives could not have been taken for constituting the offence so far as the accused was concerned. In this background the Supreme Court had held that the documents annexed to the petition cannot be termed as evidence without being tested and proved. In the present case the sheer improbability of the allegations in light of the sequence of events discloses the same to be frivolous and vexatious. In fact in paragraph 9 of the said judgment at sub-clause (i) of the categories of cases where inherent power can and should be exercised to quash the proceedings is one where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction. In the present case also the allegations made clearly relate to the act done by the petitioner in discharge of his official duty, that is, to effect arrest pursuant to a criminal case, would necessarily require sanction of the State Government under Section 197 of the Code which has not been done in the present case. Similarly in the case of Devendra Prasad (Supra) though in general it has been held that second revision, after dismissal of the first one by the Sessions Court is 10 Patna High Court Cr.Misc. No.17639 of 2013 (6) dt.07-10-2013 not maintainable and that inherent power under Section 482 of the Code cannot be utilized for exercising power which are expressly barred by the Code but it has also been held that the power under Section 482 of the Code could be exercised by the High Court in rare and exceptional circumstances, where the Court might find that permitting the impugned order to remain undisturbed would amount to abuse of the process of the Court and would result in failure of justice. In the present case also this Court finds that allowing the criminal case to proceed would amount to abuse of the process of Court and would also result in injustice. In the background the discussions hereinabove and taking into account the overall facts and circumstances of the case, this Court is of the considered opinion that letting the present criminal case to proceed will be an abuse of the process of the Court. Accordingly, the Complaint Case No. 1446 of 2012 as well as the order taking cognizance dated 13.09.2012 and also the order dated 13.03.2013 passed in Cr. Revision No. 697 of 2012/105 of 2012 are quashed, as far as they relate to the petitioner. The application stands allowed. (Ahsanuddin Amanullah, J.) Anand Kr.